PRAHLAD PRASAD MAHROTRA Vs. THAKUR PRASAD MEHRA AND COMPANY

JUDGEMENT

(1.) IN this case the respondent, Thakur Prasad Mehra and Company, obtained a decree against the appellant, Prahalad Prasad Mahrotra, in Suit No. 3540 of 1949 in the Calcutta High Court in its Ordinary Original Civil Jurisdiction. The decree was transferred to the Muzaffarpur Court for execution on the 24th August, 1955. On the 24th February, 1956, a notice was issued by the Muzaffarpur Court under Order 21, Rule 52, Code of Civil Procedure. On the 15th March, 1956, the execution Case was dismissed for default. But on the 15th January, 1957, the decree-holder again applied to the Muzaffarpur Court for execution of the decree. It was objected by the Judgment-debtor that the Muzaffarpur Court had no jurisdiction to execute the decree because the Muzaffarpur Court had communicated the result of the previous execution to the Calcutta High Court on the 16th March, 1956. The contention of the Judgment-debtor was that under Section 41 of the Code of Civil Procedure the Muzaffarpur Court had sent a certificate to the Calcutta High Court about the result of the execution and hence the Muzaffarpur Court had no jurisdiction to entertain a fresh application for execution of the same decree. The argument of the judgment-debtor was rejected by the Muzaffarpur Court on the 5th June, 1957. Against this order the Judgment-debtor has presented this appeal to the High Court.

(2.) ON behalf of the appellant the contention of the Advocate General was that there is a note in the remarks column of the suit register as follows: "Result sent on 16-3-56." It was submitted by the Advocate General that the Communication must have been sent to the Calcutta High Court about the result of the execution and this was tantamount to a certificate as contemplated by Section 41 of the Code of Civil Procedure. We do not accept the argument of the Advocate General as correct. All that the entry in the register indicates is that an information was sent to the Calcutta High Court relating to the dismissal of Money Execution Case No. 104 of 1955. The order sheet of the execution case does not show that the presiding officer directed that a certificate should be sent under Section 41 of the Code of Civil Procedure to the Calcutta High Court regarding the dismissal of Money Execution Case No. 104 of 1955 on the 15th March, 1956. There is also no proof adduced on behalf of the appellant that a certificate was sent to the Calcutta High Court under Section 41 of the Code of Civil Procedure. It was submitted by the Advocate General that no formal certificate is necessary to be sent under the provisions of Section 41 of the Code of Civil Procedure, which is in the following terms: